BARRIE COURT FILE NO.: CR-17-000135-AP

DATE: 20191015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RICHARD WILLIAMS

Defendant/Appellant

Kathleen Healey, for the Crown

Najma Jamaldin, for the Defendant/Appellant

HEARD: June 3, 2019

REASONS FOR DECISION

DE SA J.:

Overview

[1] The Appellant was arrested while using cocaine in a bathroom cubicle. An officer observing unusual activity in the cubicle, peered in and observed the Appellant using cocaine. The officer entered the washroom stall, arrested the Appellant and seized the cocaine.

[2] At trial, the Appellant brought a Charter application seeking to exclude the cocaine. The trial judge dismissed the application and the Appellant was convicted.

[3] According to the Appellant, the trial judge erred in considering the Appellant’s “unlawful use” of the washroom cubicle in balancing the factors under s. 24(2) of the Charter.

[4] I disagree. In my view, the trial judge considered the appropriate factors and did not make unreasonable findings. Her decision is entitled to deference.

[5] The appeal is dismissed. The reasons for my decision are outlined below.

Summary of Facts

Background Facts

[6] On January 22, 2016, Officer Waugh of Barrie Police Services conducted a liquor license establishment check at the “Queens”, a busy downtown liquor establishment with his partner Officer Conroy. Officer Waugh was checking the bathroom for general patrol to enforce the Liquor License Act. He attended the bathroom of the establishment because police had previously found intoxicated people and other issues in bathrooms.

[7] As he entered the bathroom, Officer Waugh observed that the far stall in the bathroom was occupied. The individual inside that stall did not appear to be using the toilet. His feet faced the south side of the stall where the toilet paper dispenser was located and not the toilet or the door as would be expected of a person using the toilet. When questioned by defence, Officer Waugh agreed that a person facing the toilet paper dispenser could be taking out paper to put on top of the toilet or to blow their nose.

[8] From Officer Waugh’s experience, the flat surfaces of toilet dispensers were used for cocaine consumption. Officer Waugh peered through the one quarter to one half inch wide crack between the stall’s door and the wall. Officer Waugh’s intention was to peer inside at the toilet paper dispenser and he positioned his body to do so.

[9] He observed a male inside the stall, hunched over the toilet paper dispenser. The male was placing a substance on top of the dispenser which Officer Waugh believed to be cocaine. Officer Waugh’s nose was six inches from the stall.

[10] The door of the stall was latched. Officer Waugh forced the door open with his knee yelling “police” as he entered. Officer Waugh’s main concern when he broke into the stall was the destruction of evidence. The Appellant struggled and dropped a Ziploc sandwich bag into the toilet. The Appellant also wiped the substance from the toilet paper dispenser. Officer Waugh was unable to seize any of that substance.

[11] Officer Waugh later retrieved the Ziploc bag which contained just over 11 grams of cocaine. A further 0.8 grams of cocaine and 4.9 grams of marijuana were seized from the Appellant incident to arrest.

Charter Application

[12] At trial, the Appellant challenged the admissibility of the cocaine seized at the time of his arrest. The Appellant argued that the officer looking through the gap of the washroom stall was unlawful and the cocaine seized should be excluded under s. 24(2) of the Charter.

[13] The trial judge found that the Appellant had a reasonable expectation of privacy while using the cubicle in a pubic washroom, and that his rights under s. 8 of the Charter had been violated. She found that the officer had minimal grounds to conduct the observations he did.

[14] However, after considering the factors enunciated in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 she declined to exclude the evidence.

[15] The trial judge found that the officer’s conduct, while in violation of the Appellant’s rights, was not egregious. She held that the officer erroneously miscalculated the circumstances in which he could look through the gap. The Appellant was fully clothed, and was using the space to get ready to use drugs. Despite the direct link between the breach and the impugned evidence, the trial judge concluded that the impact on the Appellant’s Charter protected interests was not serious. She explained:

As in R. v. Wegner, I find that Mr. Williams’ privacy interest and personal dignity were not adversely impacted in the same way as a person who may have been sitting on the toilet when the officer initially looked into and subsequently entered the stall. Mr. Williams was using that space for the purpose of getting ready to use drugs. He was fully clothed, and the officer could only see him in the stall by virtue of the fact that he had positioned himself at the toilet paper dispenser to prepare his drugs.

[16] After balancing the Grant factors, the trial judge found that the factors favoured admission of the evidence.

Issue

1. Did the Trial Judge Err in Admitting the Evidence Under 24(2) of the Charter?

Analysis

[17] The standard of review of a trial judge’s s. 24(2) Charter decision is well-known. A reviewing court must not revisit the evidence in a way that departs from a trial judge’s findings unless those findings are tainted by clear and determinative error.

[18] Where a trial judge has considered the appropriate factors and has not made unreasonable findings, his or her assessment of what would bring the administration of justice into disrepute is owed “considerable deference”: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44, per Cromwell J.; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689 at para. 77.

[19] In this case, the Appellant argues that the trial judge erred in considering the Appellant’s “unlawful use” of the washroom cubicle in balancing the factors under s. 24(2) of the Charter. The Appellant points to the case of R. v. Wong, [1990] 3 SCR 36, 1990 56 (SCC), which held that it would be an error to question whether persons who engage in illegal activity behind locked doors have a reasonable expectation of privacy. The activity behind the doors – be it washroom, hotel, or house – does not impact the Charter protected right.

[1] I agree with the Appellant that the normative question of whether an expectation of privacy exists is to be approached broadly. As explained in Wong in the context of electronic surveillance in a hotel room:

Accordingly, it follows logically from what was held in R. v. Duarte that it would be an error to suppose that the question that must be asked in these circumstances is whether persons who engage in illegal activity behind the locked door of a hotel room have a reasonable expectation of privacy. Rather, the question must be framed in broad and neutral terms so as to become whether in a society such as ours persons who retire to a hotel room and close the door behind them have a reasonable expectation of privacy.

Section 8 of the Charter is meant to protect those expectations on which we rest our belief that our society is one in which we are not exposed to unauthorized clandestine electronic surveillance on the part of the state. I take it to be beyond dispute that just as we hold to the belief that a free and open society is one in which the state is not free to make unauthorized recordings of our conversations, so too it is no less an article of faith in a society that sets a premium on being left alone that its members presume that they are at liberty to go about their daily business without courting the risk that agents of the state will be surreptitiously filming their every movement. [Emphasis added]

[20] Once a privacy interest is determined to exist, however, the question under s. 8 of the Charter becomes whether or not the state’s interference with that privacy interest was a reasonable one. As the Court explained in Wong:

In the place of “risk analysis”, R. v. Duarte approached the problem of determining whether a person had a reasonable expectation of privacy in given circumstances by attempting to assess whether, by the standards of privacy that persons can expect to enjoy in a free and democratic society, the agents of the state were bound to conform to the requirements of the Charter when effecting the intrusion in question. This involves asking whether the persons whose privacy was intruded upon could legitimately claim that in the circumstances it should not have been open to the agents of the state to act as they did without prior judicial authorization.[^1] [Emphasis added]

[21] A warrantless search is prima facie unreasonable. When dealing with a house, the requirement for prior judicial authorization seems evident. However, when dealing with an offence being committed in a washroom stall, there will often be a measure of exigency. Police will be required to act, and to act quickly.

[22] Again, there is no doubt that there is a high expectation of privacy in a washroom stall. The police cannot go around randomly peering into occupied stalls with a view to investigating criminal activity. However, in some cases, the particular use of a washroom stall will necessarily impact the degree to which an individual retains a reasonable expectation of privacy in that stall.

[23] For example, if someone was getting beaten up in a washroom stall, one would not suggest that the police could not enter the stall to remedy the situation. Similarly, if someone was actively engaged in selling drugs from a washroom stall, the police would be entitled to intervene. Whether a particular intrusion on privacy is justified is very much driven by the particular circumstances of the case. R. v. Simpson, 1993 3379 (ON CA): R. v. Wegner, 2016 ONCJ 228: R. v. Godoy, [1999] 1 SCR 311, 1999 709 (SCC).

[24] If a breach occurs, under s. 24(2) of the Charter, a court is required to consider all the circumstances in determining whether the evidence should be excluded. The three lines of inquiry consider the extent to which the breach (state misconduct) actually undermines the interests protected by the Charter right in the context in which the violation occurred. The analysis moves from the general to the specific, but at all times, remains focussed on the effect of admission or exclusion to the long term repute of the justice system. As Fairburn J. (as she then was) explained R. v. Wegner, [2017] O.J. No. 1396, (on appeal) at paras. 27 and 28:

Trial judges are duty-bound to evaluate the extent to which a breach actually undermines the Charter-protected interests of the accused. Privacy exists on a continuum. While the accused had a reasonable expectation of privacy in the washroom stall, this expectation is rooted in the fact that public washroom stalls are typically used for highly private activities involving normal and necessary bodily functions. These activities are private for a host of reasons, including that they require an individual to expose parts of his or her body that are not exposed in public.

By referencing the fact that the appellant was not engaged in this activity, but instead using the washroom as a place to inject drugs, the trial judge was merely observing that his actual privacy interest and personal dignity were not adversely impacted in the same way as a person who may have been sitting on the toilet when the police officer entered the stall. This was of clear relevance to the trial judge’s necessary considerations under the second prong of Grant.

Suggesting that it is wrong to take into account the actual use of the washroom stall when considering the seriousness of the breach conflates the s. 8 analysis with the s. 24(2) analysis.

[25] In R. v. Nguyen, 2011 ONCA 465, the Court of Appeal for Ontario also considered the relevance of “use” in the s. 24(2) Charter analysis. The home was being used by the accused as a drug stash house. The Court found that the nature of the use necessarily impacted the balancing under 24(2). As the Court explained at paras. 61-62:

The respondents were not the owners of the home, however, and there was no evidence to indicate that they used it as a home – as opposed to a factory for growing marijuana – or that they were even occupants or had any relationship to the premises apart from having been found in them at the time of the search. Any expectation of privacy they had in the home was therefore seriously diminished.

If the police conduct in this case crossed the line and constituted a Charter breach, it was a breach on the relatively minor end of the spectrum of seriousness, in my opinion, and given the respondents’ reduced expectation of privacy in the premises, the impact of the breach on their Charter-protected rights is also reduced.

[26] In this case, while the trial judge found that the officer’s grounds were deficient (s. 8 Charter breach), she found his actions in peering through the gap were not flagrant or disrespectful to the privacy interests at play. She held he was not engaged in a practice of randomly peering into stalls. In looking through the gap towards the toilet paper dispenser, the trial judge found the officer was respectful of the occupant’s privacy. It was only after observing the illicit drug activity that the officer forced the entry. The trial judge also properly took into account the fact that the Appellant was only using the cubicle for illicit purposes.

[27] As noted above, there is no overarching rule governing how to balance the three lines of inquiry articulated in Grant. The balancing exercise is qualitative and is not capable of being applied with mathematical precision. Reasonable jurists may disagree.

[28] Where a trial judge has considered the appropriate factors and has not made unreasonable findings, his or her assessment of what would bring the administration of justice into disrepute having regard to all the circumstances is owed “considerable deference”.

[29] I see no basis to interfere with the trial judge’s decision here.

[30] The appeal is dismissed.

Justice C.F. de Sa

Released: October 15, 2019

[^1]: Ibid, page 8.